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Subpoena of AP records revives media shield bill

By Associated Press FREDERIC J. FROMMER (AP)

May 17, 2013

WASHINGTON (AP) — The controversy over the government's secret subpoena of Associated Press telephone records has revived legislation that protect journalists from having to reveal their sources to federal investigators — and the White House is endorsing the idea.

The proposal wouldn't provide blanket protection for a journalist from having to reveal who he or she spoke to confidentially. But the government would have to convince a federal judge that the confidential source had compromised national security in speaking to the journalist.

Sen. Chuck Schumer, D-N.Y., says he and Sen. Lindsey Graham, R-S.C., will reintroduce the so-called media shield bill pursued unsuccessfully four years ago. President Barack Obama said Thursday that the point of a media shield law was to strike the right balance between national security needs and a free press that "helps our democracy function."

"I think now's the time for us to go ahead and revisit that legislation," Obama said. "I think that's a worthy conversation to have, and I think that's important."

Back in 2009, after the House passed a media shield bill, the action shifted to the Senate, where the Obama administration lobbied to add provisions aimed at protecting national security. That led to a compromise bill that would protect reporters' sources, but grant the government authority to override that in certain national security cases. Despite those concessions, the bill garnered the support of the American Society of Newspaper Editors.

In the AP case, the Justice Department secretly obtained telephone records of the news organization's reporters and editors for more than 20 separate telephone lines in April and May 2012. AP was not told of the seizure until after the fact, provoking angry responses this week from the company's president and CEO, other news outlets and members of Congress. The department hasn't said whether it got permission from a judge, but subpoenas are often issued by grand juries at the request of prosecutors.

Had a shield law been in effect, it might have forced the government to at least go through a federal judge to obtain the records.

The department collected the phone records in an attempt to find out sources for a May 7, 2012, AP story that disclosed details of a thwarted plot in Yemen to bomb a U.S.-bound airliner, around the anniversary of the killing of terrorist leader Osama bin Laden.

Under the shield bill, to get the information without notifying AP ahead of time, the government "would have had to show a judge that they needed this information, that they had an interest at stake that was valid, that they had evidence that notifying AP would really derail the investigation," said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press. "And I think that would have been hard to do."

The judge might have ordered the department to notify AP, Leslie said, which would have let the company go to court to fight the subpoena.

"And certainly, I would think with that kind of court hearing, the scope of this investigation would have been drastically narrowed," he said. The judge might have ordered that the records be turned over to him or her, so that the judge could limit the records that prosecutors had access to, Leslie said.

The 2009 compromise bill included a requirement that the journalist be given notice of the subpoena and an opportunity to be heard before the court, but with an exemption allowing judges to waive that for 45 days at a time if they determine the notice would pose a "substantial threat" to criminal or national security investigations, among other things.

The Senate Judiciary Committee sent the bill to the full Senate, but it was never voted on in the chamber. Leslie, of the Reporters Committee, said that was due in part to the WikiLeaks disclosure of classified documents in 2010.

The AP case has put new energy into the bill, Schumer told reporters. He said that while it's unclear whether his bill would have changed the result in the case, "everyone would have felt a lot better had there been an independent arbiter as to whether any information should be required of the AP and how much, how broad the request should be."

Opposition remains, particularly from conservative Republicans and some in the intelligence community who believe a shield law could encourage improper disclosures and hamper the ability to track them down.

Also on Thursday two Democrats and two Republicans in the House introduced a bill that would prevent the federal government from getting Americans' phone records without a court order.